UPDATED: The True Damage Of An Illegitimate DMCA Takedown Goes Much Further Than Simple 'Inconvenience'

from the we're-done-breaking-your-stuff,-you-can-have-it-back-now dept

Whenever an artist finds their own creations removed by a erroneous DMCA takedown notice, defenders of the system are quick to point out that the collateral damage is minimal and, because the supposedly "offending" post/picture/etc. usually returns to its original place, what's the big deal? It's just an inconvenience and a small price to pay in order for rightsholders to protect their intellectual property.

In January 2006 I went out for a late night bike ride with my camera and my tripod and returned having snapped several of these letters. I posted them to flickr and added some musings about whether or not the complete alphabet was in the area.

People started leaving comments on the photos saying that they knew where some of the missing letters were and within two days I'd completed the lot. Putting them together in one image like this was the obvious thing to do... so I did it. Individually I don't think the pictures are much cop... but together I think they look quite nice.

The complete set drew thousands of viewers and hundreds of comments as well as being linked to by sites like Boing Boing. It was even cited by Eine's wikipedia page (Ben Eine being the artist who painted the letters). Unfortunately, on February 17th, Flickr deleted Gorman's photo from its servers in response to a DMCA notice. But that's not all that got deleted.

The page it was on disappeared... and with it, all the comments, favourites, and the record of its views disappeared too. That stuff matters only because I'm vain... but every blog that linked to it now has a broken link that goes nowhere and that matters because links are what make the internet the internet. With all those links broken, 6 years worth of photo-sharing has been undone.

Gorman isn't upset with Flickr. Legally, it had no choice. It's only other option is an impossibility: police several million individual uploads and investigate every DMCA notice to ensure its viability. Neither of these are possible for a service of its scale and consequently, illegitimate takedown requests are treated as legitimate. Oddly enough, the same rightsholders who claim that having to file DMCA notices is burdensome are just as swift to dismiss the complaints of those who have been burdened with defending their own creations against a takedown notice.

In the end, Gorman's photo was restored, but not without sustaining a ton of collateral damage, the kind that rarely gets discussed by promoters of the DMCA notice-and-takedown process:

I knew that the copyright for that image was mine, so I got in touch with Yahoo! and worked out how to file a counterclaim. Which means I sent a legal notice - under threat of perjury - asserting that I was the copyright holder and again, Yahoo! has no choice but to follow procedure. They passed my counterclaim on to Wasteland, Inc who then had 14 days to decide if they wanted to continue to fight by sending a court order to restrain me! 14 days later, Yahoo! wrote to me telling me that I could repost the picture.

But reposting it doesn't bring the comments/views/favourites back and nor does it put it back at the same url which would preserve the links. They're all gone for good. The picture's life from January 12 2006 is destroyed... instead it is reborn on March 2, 2012, its history wiped. (At least we share a birthday)

Of additional interest (at least to loyal Techdirt readers who may recall something similar happening a few weeks back), Wasteland, Inc. is a porn production company and is letting a third-party company process their DMCA notices for them. Gorman did some digging into this after being assured by Ben Eine that he didn't file the DMCA.

It seems that Wasteland, Inc. are pornographers (bondage and fetish if you're asking) and they've employed a company called Degban to file copyright complaints on their behalf. They were doing so in January/February 2012... so it seems highly likely that they're somehow responsible for my picture being deleted. (And not just mine... they also filed a copyright complaint against a picture of some canal hardware.)

So I looked up Degban. Their website describes them as a multimedia copyright protection company... and says, "Whether you are a multi national media conglomerate, Community based music label, a University owned publishing house or just an independent multimedia producer, Degban can rescue you from the plague that is Digital content piracy."

Apparently, Degban, much like the now-infamous Armovore, works almost exclusively for porn producers. If this is any indication of where porn IP enforcement is headed, it looks as if anyone posting anything anywhere has a chance of finding themselves at the receiving end of a DMCA notice. Gorman followed up with Degban, hoping to find out why it thought a photo of the alphabet was part of Wasteland's catalog.

Degban make all sorts of spurious blind-them-with-science claims on their website. It's not easy to understand quite what they're claiming because their use of the English language is a bit creative - although it is good to know that their client care team isn't just made of people who are only pleasant - but I think they're claiming that they have some kind of automatic detection software running and an automatic process that then files thousands of takedown notices a day. Or an hour. Or whatever sounds most impressive.

After various dead ends, Gorman managed to get ahold of Degban's CEO and ask him why his pictures were included in this takedown notice. The response doesn't inspire much confidence in this supposed automated service (which would subject the company to perjury charges if the "automated" takedowns are illegitimate):

Hello Dave

I do apologize for the inconvenience, we have been victim of a phishing/hacking attack, which was aimed at reducing our credibility among clients and the public as you can see how, I truly am sorry that you were effected as such, but allow to humbly suggest that you channel a part of your anger at those holier than thou hackers who effect users like yourself by such irresponsible actions

we are working hard to fix the matter, but alas we can not do much as the size of the attack was larger than we could have expected

I am hoping you can manage to get back your traffic and are never affected by such issue ever again

YoursTaban PanahiDegban Ltd.

So, as Gorman explains, this "explanation" means one of three things, none of them good.

1.) Degban has no automated system and is instead sending out tons of requests manually (with very little attention being paid to detail) in order to make it appear that it does have an automated process.

2.) Degban has an automated system but it is obviously faulty and running without oversight.

3.) Taban Panahi is telling the truth and content across the web is now subject to malicious takedown notices sent by hackers.

Any way you slice it, it's bad news. Anyone's content can be removed under false pretenses, whether it's actual maliciousness or algorithmic/human error. As the system "works" today, it's open to misuse. And despite claims from proponents of the DMCA process, there's more at stake than simply the single item in question. With one false DMCA notice, the entire history of a popular photo was erased, taking with it the story of how this "alphabet" came to be. The "notice-and-takedown" process is very obviously broken, resulting in the sort of situation Gorman has described.

When you consider the amount of damage that a single mistaken DMCA notice can do, it's amazing that this process is still considered to be "fair" by its users. This is yet another strong argument for a notice-and-notice process in which companies and individuals would have a chance to file a counterclaim before the content is deleted, rather than having to assert their claim post-takedown and be left to clean up the resulting mess.

(Oh, and definitely click through for the whole post. Gorman has rearranged his famous letters into a statement to Degban.)

UPDATE:

Straight from Dave Gorman via Twitter, a little more information on Degban's error ratio and its supposed hacking (and some clarification):

1. Just to clarify: Yahoo!/Flickr told Gorman that he could repost his photo. Flickr did NOT repost it once the takedown was successfully challenged. Gorman had a backup and was able to do so, but not everyone will have a backup of their files, especially if relying on a cloud-type or social service to host their output.

2. According to Degban, its service was hacked and this was responsible for the false DMCA notices. But Degban claims the attack happened on February 29th. Gorman's takedown is dated February 17th. Gorman: "So it's a magic time travelling hack."

3. This Degban DMCA notice lists 82 URLs, 25 of which are for content that doesn't belong to the company named (Switchback Media). So, more than 3 out of every 10 takedowns will affect unrelated content. It looks like the sloppy work of someone relying on a poor search algorithim rather than there being an actual human being double-checking the output. Gorman points out that Degban is most likely looking for content featuring Destiny Dixon and is sweeping up content by Destiny's Child and Alesha Dixon. I'm not sure that I'd be willing to sign something under threat of perjury with only a 70% of being right.

... comes around

Re:

Yes, he should significantly blame Flickr for this. It's a stupidly-designed DMCA takedown system that permanently deletes a page or image, removing the ability to restore it later. The broken links and lost comments are a result of Flickr's incompetence.

So what stops a group of hackers using one of those botnets from sending DCMA notices to the entire internet? It can be hard, find every image, graphic, and link you can, send tons of spam DCMA requests and watch the fireworks?

Re:

Re: Holy Shnikes, Batman!!

You know, I think I would actually support production of that. Really should get some people together and get moving on that. Can do a kickstarter to fund it and give it away through bit torrent, I bet it would be a big hit.

simple

I glanced a read about a group trying something like this to prove how seriously borked the system for dmca take downs are. If something can be infiltrated and used by anyone in this manner, it needs to be done away with. Personally, I'm sick of this whole nazi content regime anyway.

SO many call it rights, but all I see is dictatorial mantras. Not an artist or creator helping themselves. BLAH. Die in a fire.

People like him are damaged because they value the interaction with people. Links, comments, ideas, those are all from the common person and resulted in a work that was far more valuable than if it was released by itself.

DMCA-supporting corporations consider it an "inconvenience" because they don't value the people.

Re: Re:

Yahoo is currently being run by the inexperienced and the incompetent. And if this is any indication, even those people are about to fired en masse. Don't look for anything even remotely approaching acceptable practices there: they're far too stupid, far too cheap, far too careless to deliver it.

Re: Words

It would also appear that the illiterate, lying, stupid assholes running this site like to put up pretty (but clearly fabricated and utterly worthless) graphs and annotate them as follows:

"Below is a brief overview of some of the statical data gathered each second by our system."

Yeah. Uh-huh. Like you chimpanzees have even a fraction of the mental acuity required to formulate the PROBLEM of gathering such data, let alone deploy the infrastructure to do so and to turn it into statistically relevant graphs.

I absolutely believe that hackers are trying to discredit these people. They have attacked banks, the FBI, the CIA, credit card companies, etc... Instead of blaming the victim in a tar-and-feather confidence scam he should be blaming the vigilante hackers who are causing your "collateral damage". I'm actually surprised that admitted that they fishing scam had been effective, this will surely hurt their prospects for future business.

Re: simple

It's part of their RIGHTS before the internet existed. Aren't you guys always saying how special laws shouldn't be created for the internet that don't apply to the real world? I guess you only make that argument when it's in your favor.

Re: But these laws...

Re: Re: simple

You talkin' to me? You talkin' to me? You talkin' to me? [He turns around to look behind him] Well, who the hell else are you talkin' to? You talkin' to me? Well, I'm the only one here. Who the fuck do you think you're talkin' to? Oh yeah? Huh? OK.

Re: Takedown vs. Destroy

He has edited his blog post today to state:

[EDIT (MARCH 7) According to the terms of the DMCA, they - the service provider - are supposed to replace the content they removed. They haven't done this. I do have a beef with flickr about that, because reposting it doesn't achieve all that replacing would.]

I can't say that I blame him... for having beef with a major service provider like flickr that can't even hack their own pages back into place, or refuse to do so for that matter...

Re: Re: But these laws...

Obviously, you do not know. And you never will. Because you are simply too lazy to investigate properly. I, on the other hand, do not care if it was 13 or 13,000, but if it is greater than zero, we have a problem. Your post is pointless and without merit. Good day, sir.

Re: Re:

Before this is done, first someone needs to push back against their own false DMCA takedowns. Then whatever arguments they would raise can be immediately used against them. Specifically the "it was a simple mistake, no big deal.".

Re:

Please explain PRECISELY the alleged methodology being used by hackers to "discredit these people". (Let me note in passing that I hardly consider that necessary: they've already quite thoroughly discredited themselves.)

Be detailed and specific. You may safely presume that you're addressing someone who's been studying hackers and hacking for the last several decades.

Content Trolls

Is it just me, or does anyone else think that these sort of content trolls are more dangerous to society than any "unauthorized" use of images? Especially when they do business without (apparently) being able to write coherent sentences in the English language.

Re: Re: simple

Does Degban have any integrity?

Degban's last set of listings on Chilling Effects is dated February 5, 2012. There are 80 DMCA takedown notices from them on that date. That is a rather sudden dropoff. Chilling Effects regularly receives a copy of DMCA complaints filed with Google and so the database has listings (none in the last month from Degban) up to March 5.
One example of a DMCA takedown notice that lists the copyright holder as Wasteland Inc. is for a TorrentHound listing for "Tony Hawk's American Wasteland" which is an Xbox 360 video game. The copyright holder is clearly not Wasteland Inc. nor any of the other Phoenix Group holdings.
Wasteland Inc. is run by Colin and Angie Rowntree. Colin posted a comment on Dave Gorman's website, which I am re-posting here"

Colin Rowntree said...

One of my colleagues sent me the link to this post as a heads up and I am pretty baffled by the entire thing. We do have Degban handle our DMCAs, but only for torrents and fileshare sites, and on those only videos with a duration of longer than 5 minutes. They do a very good job on this for a very very reasonable monthly fee, so all of this pretty much comes out of the blue at me.

Something seems to have gone terribly wrong somewhere as we don't touch the tubes (we have lots of affiliates uploading our clips to those) and certainly not photos on blogs or Flickr featuring artistic photography (yours is very nice, btw, Dave!).

I'm checking in with Ella at Degban to see what may have happened here and will report back on this asap. Dave: please do feel free to contact me about this mess. Happy to try to assist in any way possible. rowntree2007 @ gmail.com

I would tend to believe Mr. Rowntree about this issue. Wasteland would have no interest or advantage in sending bogus DMCA takedowns to any site that just had the word "wasteland", another keyword related to their films, or most likely a combination of keywords. The Tony Hawk video game points to an algorithm that has false positives that are not vetted. I imagine that Gorman's Flickr post reached a threshold where comments ended up including multiple, Degban selected, keywords. Considering that Wasteland's copyright interests should only be limited to actual video files containing entire films or portions thereof, Degban's algorithm is atrocious. They should suffer the penalties applicable for filing false DMCA takedown requests.

The following is from an article in the Adult Video News (AVN) that appeared yesterday:

Late Monday, AVN sent Degban, which is located in London, an email requesting further details on the alleged breach. This comment was waiting in the inbox this morning:

"On February 29th, our SMTP server was accessed by an outsider through a password phishing scam," the company said. "The intruder then used our SMTP server to report legitimate content as piracy, using our own Take-Down notice templates. This was done to reduce our credibility with hosting companies. Degban, however, employs digital signature for all emails, except for those that do not accept it. A part of the attack failed, as only those who processed the fake emails, without digital signature, were affected. Since the attack, we have changed all passwords, and implemented an extra layer of security to ensure our SMTP server is only accessible through trusted devices, much like Facebook does.

"As the attack rested solely on an human error, it does not seem to have been initiated by any known 'hacktivists,' but rather by a disgruntled file-locker owner or pirate. Our system is set up so that the STMP is actually separate from the Degban core; the service provided to our clients is run and developed by Degban. We have set up our system so that any security breach cannot penetrate to the core. Obviously, we regret that this particular event occurred, and where the protective layers were lacking, we have already implemented extra security.

"In terms of damages, only those whose files cannot be retrieved have been affected. We are still contacting hosts, attempting to get their content reinstated. Clients, employees and the rest of the public are unaffected on a technical level. For any clients that experienced downtime during their service, we will refund them the service fees for that time."

Well, it's conceivable that bogus DMCA notices were sent because of a hacker. After all, that is the excuse that Techdirt commenters use when they are caught with kiddie porn (/s). Why shouldn't we believe Degban at their word?
There is a reason. Notice that Dave Gormans's photo was removed on February 17th, 12 days before the supposed hack occurred. There are technical inconsistencies in this explanation as well. An email can contain a digital signature whether or not the receiver makes the effort to confirm it's authenticity. Surely Flickr, and Yahoo in general, would confirm digital signatures from such a prolific source of DMCA takedown notices. All in all, this explanation comes across as someone using technical terms as a way to snow the non-technical reader. I am calling bullshit on this one. What I would like to know how Degban explains using what looks like a very simplistic algorithm that matches some subset of keywords. I would also like to know if the program can automatically send out DMCA notices without any human intervention.

Re: Does Degban have any integrity?

Excellent analysis, and I join you in throwing the BS flag.

I'll also point out that Degban just admitted that they're spammers: they're sending unsolicited bulk email. That's the canonical, authoritative definition of spam (and always has been), and it does NOT include exceptions for things like this. Nor should it. (I'll omit the much longer discussion of why that's so.)

The picture that's beginning to emerge of companies like this is that they're automating the process, using it to emit abuse, and not worrying about the consequences...because for them, there aren't any. I think we need to be looking at them MUCH more closely, and I don't think we're going to like what we see.

How to properly deal with them.

There once was a man who attempted to illegitimately shut down my roadside frankfurter stand. He began screaming at me in a very loud voice, claiming that I was unfairly competing with his in-town diner, and began threatening my livelihood with expensive litigation. So I cut out his tongue. Angered, he then attempted to punch me in the face, so I cut off his arms. Even more enraged, he finally attempted to kick me in the groin. So I cut off his legs. He then looked at me with his face still twisted in rage and anger and hate and contempt, so I cut off his face, and cut out his eyes, and lastly cut off his head. He no longer presented a threat to my livelihood. He also made a lovely sausage after being ground up, and was then cooked and fed to my Rottweilers. So, perhaps he did serve a purpose after all. Or at least the dogs think so.

hackers

I have my doubts there was a hacking. It would be nice if Mr. Gorman took the matter further - perhaps with the EFF. The ability to show that there was a lie about the hack it would destroy the company - which is perhaps a good thing.

Re: Words

Dear Taban, The EFFECT of your organization's actions had a major AFFECT on the copyright holder.

The EFFECT of your comment is to AFFECT your audience in the following manner: they now see you also don't know the difference between EFFECT and AFFECT. To EFFECT a change in this situation, try looking up both words. I hope I have not produced any negative AFFECT in your psyche. ;-)

Re:

Perjury: knowingly giving false testimony under oath.

Probably it is rarely prosecuted because of the difficulty of proving beyond reasonable doubt that the perjurer knew the statement was false, though it does occasionally happen to lying witnesses in criminal cases where the evidence is strong enough.